O'Donohue v. Canada
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O'Donohue v. Canada was a legal challenge to the exclusion of Roman Catholics from the throne of Canada. The applicant sought a declaratory judgment that certain provisions of the Act of Settlement 1701 violate the equality-rights section of the Canadian Charter of Rights and Freedoms. In 2003 the Ontario Superior Court of Justice dismissed the case, finding the matter non-justiciable. In 2005 that decision was upheld on appeal.
The application was brought by Tony O'Donohue, a civil engineer and former Toronto City Councillor, after over two decades of pursuing reform of the succession by constitutional amendment.
Currently Canada's head of state is Elizabeth II, Queen of Canada; a legally distinct position from the Queen of the United Kingdom, though embodied in the same person. As a sovereign nation, Canada is free to alter its own laws, but its Constitution includes the 1931 Statute of Westminster, which set out the convention that all of the Commonwealth Realms must have the same lines of succession to the throne, to maintain the unity of the Crown (See: Commonwealth Realm - Sovereignty of the Realms). Thus the constitutional law that predominantly governs the line of succession to the throne, the 1701 Act of Settlement, must remain identical to the same law in the other Realms, including the United Kingdom. The Act of Settlement, however, forbids Catholics from becoming King or Queen of Canada.
O'Donohue argued that this law was discriminatory, and attempted to have it repealed. As a sovereign country, Canada, it was argued, should be free to change any laws regarding who becomes the country's head of state. The Court File (NO.: 01-CV-217147CM) stated:
- The applicant. Tony O’Donohue, has brought the present application for a declaration that certain provisions of the Act of Settlement, 1710 [sic], are of no force or effect as they discriminate against Roman Catholics in violation of the equality provisions of the Canadian Charter of Rights and Freedoms. Pursuant to the order of Mr. Justice Spiegel dated May 29, 2002. only the issues of standing and justiciability are to be dealt with at this point. Should I grant the applicant standing and find justiciability the matter will proceed to be heard on the merits; if not, the application will be struck.
Her Majesty the Queen in Right of Canada and Her Majesty the Queen in Right of Ontario were named as respondents in the case.
From tonyodonohue.com:
O'Donohue, who's fighting the legislation in court, feels that it's not only a personal affront to him as a Roman Catholic but, by restricting Canada's head of state to only members of one particular religious sect, it's also a flagrant contravention of Canadian law. Section 15(1) of The Charter of Rights and Freedoms expressly forbids discrimination on the basis of "race, national or ethnic origin, colour, religion, sex, age or mental or physical disability".
The judgment of Justice Rouleau, of the Ontario Superior Court of Justice, was rendered on June 26, 2003. It was upheld by the Ontario Court of Appeal on March 16, 2005.
